We The Jury

I recently received a summons to report to jury duty in Delaware County Ohio for the next four months. The notice sparked some dark and painful memories, and I thought I would relate them here.

In 1987-88, (I think that was the right time) I was a juror in a capital murder case. I lived in Portland Oregon at the time. It was my first and last time as a juror. It was not fun. Frankly, I never want to do anything like that again, and trust me, you don’t either.

I can’t remember any of the names, not the victim, the judge, the attorneys, the accused or any of my fellow jurors. I wrote extensive notes every day of the trial and stowed them away, thinking I would want them some time later in my life. I remember finding them in an old box years ago. I think I threw them away, as near as I can tell. It’s a fuzzy memory, and I can’t find them now. It’s funny that I can see all of the people in my mind, the court, the judge, my fellow jurors, the defendant, the lawyers, even the family members of the victim who came to court every day. However, no names, not even one. Are you sensing something going on here?

You see, we found the accused guilty and we ordered him to die for it.

In Oregon, there are two phases to a capital murder trial. The first is to determine if the defendant is guilty of the crime of which he is accused. All we did in the first phase is determine did he commit the murder, and did the circumstances of murder meet the qualifications of Capital Murder, or perhaps some lesser charge, such as second degree murder or manslaughter. If we said he was not guilty of the crime that would have been it, case closed. We spent more than a month and half as I recall listening to testimony with occasional days off while the court conducted other business or heard motions that we were not supposed to hear, before the judge release us to deliberate our verdict.

The second phase of the trial is to determine, again according to the strict definitions provided by statute, two things: did the circumstances of the crime fit a certain set of criteria or not, and was the defendant likely to be a future danger of society. A yes answer to both questions was required for a sentence of the death penalty. A no answer to either or both of the questions meant the sentence was mandatory life in prison. Those were our two choices. We spent another month or more on that phase with a two-week interval between the two phases.

As I recall I first reported for jury duty on a Monday morning in early December. (Again, I could have the time wrong, but that is what my memory says) They drew my name for the very first jury pool within 30 minutes on that first day. Between jury selection and the two phases of the trial, I wasn’t done with it all until mid-April. We started in early winter and ended in mid spring.

My boss was not amused.

The jury selection process was not what I expected. We started out as a group of about 120 people. They split us into three groups of about 40. One by one, each group went into the courtroom and met the judge, who told us that we were being considered as jurors on a Capital Murder case. Today we were to fill out a questionnaire that we were required by law to complete as fully and honestly as possible. The Prosecution and Defense attorneys could dismiss up to a certain number of us based on our questionnaires. Once we had completed the questionnaire, the clerk excused us for the rest of the day and, in fact, the rest of the week. We were to report to the main jury waiting room on Monday the following week. At that time, either we would go back to the general jury pool if rejected by the Prosecution or Defense, or we would report to the courtroom and proceed with the voir dire process.

The questionnaire was huge. It took three hours or more to complete the form. It was the most detailed thing you can imagine. It wanted me to list all my living relatives’ names down to first cousins, as well as addresses if I knew them. There were the expected questions about my education, employment, hobbies, criminal record, and marital status. They wanted to know odd things, too, like how often did I get drunk and had I ever had a venereal disease. There were questions that didn’t appear to have much to do with a trial or murder, but a psychologist obviously created them to analyze our thinking and personality. We had to fill it out while being under the scrutiny of guards and court clerks.

As you have surmised, when I came back the following Monday, I was told to report to the courtroom. I made it through the questionnaire process and was still in the pool of potential jurors for the trial. Voir dire is the process where the attorneys and even the judge interview the jurors. They did us one at a time, with none of the other jurors in the room. It took all week. They told me that I could go home, but that I should report to the courtroom for my interview on Wednesday morning and be prepared to spend the whole day waiting my turn. On Wednesday, the clerk called me into the courtroom about mid-morning as I recall. They asked all the usual questions you would expect: how did I feel about capital punishment, did I feel differently about black people than white, did I think I could be impartial and that sort of thing.

At one point, the judge told me that if I were on the jury, I would see evidence that included pictures of a nude woman. Did I have a problem looking at such pictures? I said no with a straight face. The Defense attorney chimed in that I would also likely hear offensive language and bad words, and was that a problem for me. That was too much. I chuckled and replied, “Man, I grew up in Riddle, I’ve heard it all.” The judge laughed at that. So did the attorneys. I realized I was screwed at that point. There was no way I was getting out of being on that jury.

And I did not. All the potential jurors reported to the courtroom on the following Monday, and the clerk announced that she would call 14 names (12 jurors and 2 alternates). If our name was called, we were to stay, if not, we could leave and our jury duty service was ended. They called my name. When just the 14 of us were still in the room, the clerk gathered us up and we went in to see the judge. He told us that our service would probably last several months, but he was giving us three weeks or so off over the holidays. He told us to report at 8:30 am on the first Monday after New Year’s Day for the first day of the trial.

I won’t go into the details, other than to say that the defendant, a young black man in his mid-20s, was accused of raping, then strangling a young black woman in her apartment.

As I said, there are two phases to the trial. At the conclusion of the first phase, the guilty or not phase, the judge gave us instructions and sent us to deliberate at just before 11 am. They locked us in the jury room. Seriously, guards stood at both the hallway door and the courtroom door to the jury room. They were there both to keep people out and to keep us in. We were a little shocked that they could summarily extinguish our freedom to move and associate just like that. It was like being in jail.

Once the doors closed and, yes, locked, our first question was whether we needed to elect a jury captain. The judge hadn’t said one way or the other. We debated that for a few minutes and decided we would not for the time being, as long as we could keep things moving along. Someone suggested that perhaps we ought to take a vote, to which someone else said that we ought to look at the evidence a little closer first, including photos and other materials. It’s not that we needed to look at it; we had seen it all before. I think that many of us wanted to look at it again to give the appearance, if only to ourselves, that we were carefully weighing our decision. There was also a certain morbid curiosity and, to be honest, titillation in looking at that poor young naked dead woman lying on her back on her bed. She had been pretty in life.

Finally, around 11:30, another person suggested we ought to vote to get a feel for the lay of the land. We agreed, tore up some paper into ballots, wrote guilty or not guilty on them, and threw them into an unused coffee cup. That took 2 minutes, tops. One of the guys took the ballots out, put them on the table and tallied 12 guilty votes, unanimous on the first try and in just about 30 minutes.

Someone said, “I guess we should call the Bailiff and tell him we have a verdict.”

Someone else said, and it was not me, “Wait. If we are still in here at noon, they will pay for our lunch and have it delivered. “

That was a grand idea, we all agreed, and that is just what we did. We waited it out, got our free lunch, ate it, and when were all done, informed the Bailiff that we had a verdict. By 1:30 pm, we were back in the courtroom and passed the judge the form we had to fill out announcing our verdict. We were all remarkably unemotional and cool about it all. It was just like going to work, no big deal. I think that was so because after a month and half of evidence, none of us had any doubts of his guilt.

That was the easy part. Little did we know just how hard would be the second phase.

I don’t know that I can describe the weight of that decision as it bears down on you. I will try to give you a sense of it, of what it is to find yourself in a position of having to decide to say to a man, “we are going to kill you.” It is not something you prepare for or even think about in realistic terms until you find yourself in the position of having to do it.

It’s not as if the defendant was shooting at me. He never threatened me or anyone I know. I would have no trouble killing someone who threatened me or my family or some other innocent person. I’m not against capital punishment and actually still support it. The hard thing is, the thing that sometimes wakes me up at night, is that what we did, my fellow 11 jurors and me, was more cold blooded than the crime the bad guy committed. Our decision was well reasoned, purposeful, open, supported by facts, logic, and the lawful rules of the great State of Oregon. He committed his act in probably ten minutes of alcohol-induced insanity. We spent months coming to ours. He was going to die for his momentary bad decision and we were going to spend a long time living with our purposeful and carefully thought out one.

This is not some sort of guilt-ridden confession. I am not seeking to cleanse my soul or induce cathartic psychological healing in this rant. I did my duty as the statutes of the State of Oregon required. I do not feel guilty about that. I did not kill that 21 or 22 year old unwed mother of an 18-month-old baby. I did not rape her and strangle her with the telephone cord. I did not leave her naked body lying haphazardly across her bed while her baby was in a crib at the foot of that bed, a baby that was found in that crib next to his dead mother hours later by neighbors who got worried because they heard him crying all morning. I am convinced of the defendant’s guilt still, and he deserved to die for what he did.

How often have you heard people say that we should “line all those”—pick the bad guy du jour—“up against a wall and shoot them.” Whom would we want to do that to today? Al Qaeda? Taliban? Mexican drug lords? Liberals? Conservatives? Often those who say it are quite passionate and really mean it. But, I’ll tell you what: put Osama Bin Laden against a wall, pick any one out of the crowd professing to want him dead, give him a .45, stand him in front of OBL and tell him to let ‘er rip. Many wouldn’t do it, couldn’t do it. The reality of the act hits you in the face like a bucket of cold water, and suddenly it’s personal.

You want to know why some juries are hung, and can’t reach a verdict in capital murder trials? I think one or more of the jurors refuses to agree to convict because they suddenly see themselves holding that pistol and pulling that trigger.

In the sentencing phase, we needed to determine did the rape of the victim constitute one of the crimes during the commission of which a murder qualified for capital punishment. If so, did the defendant commit the murder to facilitate the rape or to hide the evidence of his having done it. The answer to these questions was a big Hell Yes.

In addition, our task was to determine if the defendant posed a continued future threat to society. As I said, we had to say yes to both questions in order to impose the death penalty. The first part, the rape murder connection, was easy. This second part was not easy.

The prosecutor spent a great deal of time showing how the defendant had committed an ever-escalating seriousness of crimes in his young life. The point being that he had culminated that escalation in raping and murdering a woman, so who knew what the next act would be. It was a fair point, but really, I thought it was a little much presenting evidence of how he had stolen a handsaw from a school when he was nine. His mother told, us but not tearfully, (I felt she really was trying to feel all emotional about her son, but it didn’t come off very well) “what a loving son” he was, and how being without a father for most of his life meant he didn’t have any “good role models” on which to pattern his behavior. I suppose the point she was making, and the defense attorney through her, was that we should not sentence her son to death because it was not his fault that he was a bad man. She probably believed that. I know many people do. The concept is that we are what our environment makes us; we can’t help being what we are and are therefore not responsible for what that makes us do. It is the old nature versus nurture argument. It’s a load of horseshit, in my opinion. In this case it only raised the question in my mind that if it wasn’t her son’s fault was it then her fault for the environment she gave him?

We spent a month listening to this sort of thing. To be honest, I think the best argument made by the defense attorney had to do with whether the defendant posed a future danger to society. He argued that if we sentenced the defendant to life in prison he would not be in society, and so could not endanger it, but only possibly his fellow prisoners, and that hardly counted as society. He actually had me thinking on that one. Remember, we were duty bound to follow the letter of the law, but that doesn't mean we were not also asked to interpret the sense of that letter. The point is this argument made a good deal of sense depending on how you defined “society”. His argument was spoiled I think when no one could or would tell us whether the defendant would qualify for parole at some point; we weren’t allowed to hear that. There was also the remote possibility that he would escape from prison. In my own mind, I assumed that because they wouldn’t tell us about parole that meant he could qualify for some sort of release, and thus could be back in society. My fellow jurors also raised this point and it helped persuade us I think. I personally believed that he was a threat to the rest of us, if only because he was too stupid not to stay out of trouble. Darwin wasn’t wrong.

We had a lady on our jury who was smart, college degreed, well spoken, level headed, imperturbable, and very attractive. She was the executive assistant of a CEO of a corporation with headquarters in downtown Portland as I recall. She was like a rock. Most of us would on occasion make macabre jokes or act sophomoric in attempts to break our tension. She was all business and even keel throughout. I much admired her.

When all the evidence and arguments were done, the judge sent us off with our instructions. We found ourselves locked in our tiny jury room again. It was a narrow space maybe 20 feet long by 10 feet wide. It was just wide enough to put a 4-foot wide, 8-foot long table in the center, and fit chairs around the table. At the hallway end of the room, there was a small 5 x 5 foot restroom. Its walls were paper-thin and nobody used it to do their business if they didn’t have to. Everyone in the jury room would hear every grunt, splash and tinkle.

We slowly walked into the room and heard the lock snick behind us as the bailiff closed the door. The mood this second time around was very sober and subdued, all that it had not been in the first phase. We just stood around looking at each other, at the walls, at our feet, but no one said anything or sat down at the table. Sitting was a sort of symbolic act that said its time to make a decision, and I don’t think any of us wanted to do that.

Our rock lady, looking as calm and composed as always moved across the room and went into the restroom. We heard the door close. To my horror, from out of the restroom came the most heart rending, painful sobbing I have ever heard. It wasn’t a wail, so much as a loud moaning with gasping pauses as she tried to get her breath and emotions under control, only to start in again. Our rock had lost it.

It was more than distressing. I thought I was going to vomit.

It took her five minutes or so to get back in control and the sobbing to cease. A few moments later, we could hear the water running. A few moments after that, she came out of the room, looking as composed and in control as always, if a little red and puffy around the eyes. She stepped up to the table, apologized for upsetting us, and then pulled out a chair and sat down. The rest of us stood a moment longer, and then we all sat.

So began our decision to kill a man.